September 20, 2018
Author: Daniel T. Downey
Organization: Fishel Hass Kim Albrecht LLP
I. Introduction to Police Officer Use of Force
A. Use of Force Defined. Use of force describes the \"The amount of effort required by police to compel compliance by an unwilling subject\" http://www.theiacp.org.
B. Types of Force by Police Officers. Physical, Chemical, Electronic, Impact, and Firearm. http://www.theiacp.org.
C. Rights of Police Officers to Use Force. Courts have recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Graham v. Connor, 490 U.S. 386, 396 (1989). However are unacceptable exertions of force.
- The Supreme Court has held that “use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”).
- The fact that an arrestee pleaded guilty in connection with his conduct during the arrest does not shield the arresting police officer from an excessive force claim. Marmelshtein v. City of Southfield, 421 F. App'x 596, 601 (6th Cir. 2011). “[D]efendants make much of Leonid's no contest plea to disorderly conduct resulting from the subject incident, arguing that ‘there is no factual dispute here since Leonid's no-contest plea ... cannot be disputed.’ Leonid's no contest plea, however, is not dispositive of the issue. Even though Leonid admitted that ‘he behaved in a disorderly manner by refusing to immediately obey the police officers and by approaching one of them[,]’ this does not give the officers license to use disproportionate force to subdue him.
D. Unlawful Force. Unlawful force can be divided into two categories: “Unnecessary” and
“Excessive.” The unnecessary use of force would be the application of force where there is no justification for its use, while an excessive use of force would be the application of more force than required where use of force is necessary. http://www.cops.usdoj.gov/default.asp?Item=1374.
II. Federal Law Basis for Liability
A. 42 U.S.C. 1983. A person may vindicate violation of Federal Constitutional or Statutory rights by bringing an action under 42 U.S.C. 1983. The statute states: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....”
1. Not a source of substantive rights. Section 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979).
2. More than Negligence. To be actionable under Section 1983, the officer’s conduct must be more than mere negligence. Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991) (“Currie also concedes that he failed to identify himself in the dark hallway, and that he did not utilize a flashlight or wear his police hat, but he characterizes these omissions as “mere negligence” upon which section 1983 liability cannot be predicated. … Currie is correct that mere negligence may not serve as a basis for a section 1983 claim. In our view, though, Officer Currie's action on the night of the shooting are cognizable under section 1983. An officer who intentionally enters a dark hallway in the entrance of a private residence in the middle of the night, and fails to give any indication of his identity, is more than merely negligent.”).
3. Elements. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. Gray v. City of Detroit, 399 F.3d 612, 615 (6th Cir.2005).
4. Capacity of Defendant in the Lawsuit. A plaintiff seeking relief under Section 1983 may bring a claim against an officer in the officer’s individual or official capacity. Individual-capacity claims seek to impose individual liability upon a government officer for actions taken under color of state law. In contrast, an officialcapacity claim is another way of pleading an action against an entity of which an officer is an agent. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978).
- Note on Pleadings. If there is no indication that defendants are being sued in their individual capacities, the Court assumes they are being sued in their official capacities. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir.2001). However, even if there is no indication in the complaint that defendants are being sued in their individual capacities, courts in the Sixth Circuit have applied a “course of proceedings” test to determine whether § 1983 defendants have received notice of the plaintiff's intent to hold them personally liable, albeit without clearly labeling the test as such.” Accordingly, failure to state explicitly that a defendant is being sued in his or her individual capacity is not fatal to individual-capacity claims “if the course of proceedings otherwise indicates that the defendant received sufficient notice.”
- Case Example: Rose v. Reed, 2:12-CV-977, 2014 WL 2695505 (S.D. Ohio June 13, 2014). The Plaintiff did not specify in his complaint whether he was suing Defendants in their official or individual capacities. However, his complaint seeks compensatory and punitive damages, and Defendants raised the defense of qualified immunity in their answer. The Court held, based on these facts, that Defendants had actual knowledge of the potential for individual liability.
5. Statute of Limitations. A claim in Ohio based on Section 1983 must be brought within two years.
6. Remedies. A prevailing party in a Section 1983 claim may recover compensatory damages, punitive damages, nominal damages, injunctive relief and attorney fees. 42 U.S.C. § 1988.
B. Which Amendment? In large part, unlawful use of force claims brought under Federal law are analyzed under either the Fourth Amendment, Eighth Amendment, or Fourteenth Amendment, within in the context of an action under 42 U.S.C. 1983. Which Amendment applies depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in between. Smith v. Erie Cnty. Sheriff's Dep't, 3:12 CV 1853, 2014 WL 320399 (N.D. Ohio Jan. 29, 2014).
C. Fourth Amendment. The Fourth Amendment guarantees citizens the right “to be secure in their persons ... against unreasonable ... seizures” of the person. U.S. Const. Am. IV. In Tennessee v. Garner, 471 U.S. 1, 7, (1985), the United States Supreme Court established that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”
1. Claims by Free Citizens. A free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person is to be analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 388 (1989). (Prisoner/detainee use of force claims are analyzed under the Eight Amendment or Fourteenth Amendment, as discussed below).
2. Objective Reasonableness. Courts analyze these claims under a “reasonableness” inquiry. The “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 (1989)
3. Intent is Irrelevant. “An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.” Graham v. Connor, 490 U.S. 386, 397 (1989)
4. In the Moment. The US Supreme Court has explained: “With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: ‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers.’ The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396 (1989).
- Case Example: Mental Capacity of the Suspect. Officers are required to take into account the diminished capacity of an unarmed detainee when asserting the amount of force exerted. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.2004).
- Wells v. City of Dearborn Heights, 538 F. App'x 631, 637-38 (6th Cir. 2013). “Although Wells has proffered a reason for his slow response, his cerebral palsy, we must judge Mueller's actions ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,’ and thus cannot charge Mueller with knowledge that he did not possess.”
- Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir. 2013) “Martin exhibited conspicuous signs that he was mentally unstable. He was also unarmed. Confronted with such an individual, Champion required the officers to de-escalate the situation and adjust the application of the force downward.”
5. Factors of Reasonableness. In determining whether the force used violated the suspects Fourth Amendment rights, Courts balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). The analysis “requires careful attention to the facts and circumstances of each case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. The analysis is a “totality of the circumstances” test, but guided by three factors.
a. Three Factors. Courts balance three factors to determine whether the force is excessive:
1) The severity of the crime at issue,
2) Whether the suspect poses an immediate threat to the safety of the officers or others, and
3) Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
b. Totality of the Circumstances. Though the factors are important, the court ultimately must determine “whether the totality of the circumstances justifies a particular sort of seizure.”
c. Temporal Proximity. The time-frame is a crucial aspect of excessive force cases. Dickerson v. McClelland, 101 F.3df 1151, 1161 (6th Cir. 1996). Where the events preceding the shooting occurred in close temporal proximity to the shooting, those events have been considered in analyzing whether excessive force was used.
- Segment Analysis. Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 407 (6th Cir. 2007). The Sixth Circuit separated the actions of the defendant officer that occurred in the hours leading up to the fatal shooting from the “splitsecond judgments made immediately before the officer used allegedly excessive force.”
- Claybrook v. Birchwell, 274 F.3d 1098, 1103–04 (6th Cir.2001) (acknowledging that excessive-force claims are viewed in temporal segments, but concluding that where “the evening's events are not so easily divided[,]” Dickerson does not mandate that the court “look only at what occurred in the moments immediately” before the shooting);
- Howser v. Anderson, 150 Fed.Appx. 533, 535 n. 3 (6th Cir.2005) (concluding that “because material disputes of fact exist with respect to both the striking of the decedent and the fatal shooting, segmentation would serve no useful purpose at [the summary judgment stage] of the proceedings because a fact-finder will have to resolve factual ambiguities with respect to both the striking and the shooting”).
6. The Role of Police Policies & Procedures. Most law enforcement agencies have issued policies and procedures regarding the use of force. Poor policies, or an agency’s failure to adequately train officers on the policy and an officer’s failure to follow these policies can lead to liability for the agency and officer.
a. Use of Force Policies.
- The evolution of continuum of force policies.
- Asphyxiation.
- Taser.
- Firearm.
- Physical Restrain.
- Other.
b. Case Example. Martin v. City of Broadview Heights, 712 F.3d 951, 958 (6th Cir. 2013). BHPD's asphyxiation policy was implemented four years before this incident to ‘protect against an in-custody death and to recognize situations which would lead to positional asphyxia.’ Each officer involved in the struggle reviewed the policy before August 2007. The officers' awareness of a policy that warns of the boundaries of appropriate force with respect to the danger of positional asphyxia reinforces the conclusion that their conduct was unreasonable. The bottom line is that a jury could find that the officers' conduct was unreasonable. The officers used their weight to compress Martin, struck his head and body multiple times, restrained his neck or chin, and placed him in a torso lock. These tactics were not justified by Martin's possible crime, the threat he posed to anyone's safety, or his resistance. The officers' failure to adhere to a departmental policy that explained the grave dangers of positional asphyxia verifies the unreasonableness of their actions. The quantum of force the officers used was constitutionally excessive, violating the Fourth Amendment right of an unarmed, minimally threatening, and mentally unstable individual to be free from gratuitous violence during an arrest.”
D. Eighth Amendment. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on those convicted of crimes. U.S. Const. Am. VIII.
1. Claims by Prisoners. Claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard of cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312, 318–326 (1986).
2. Standard. An excessive-force claim under the Eighth Amendment requires that the plaintiff show that force was not “applied in a good-faith effort to maintain or restore discipline,” but instead applied “maliciously and sadistically to cause harm.” Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 133 (6th Cir. 2014).
3. Subjective and Objective Components. An Eighth Amendment claim of excessive force by a prison official contains both an objective and a subjective component. Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993).
4. Subjective Component (“Intent”). The state of mind of the prison official is the focus of the subjective component. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.2011). Under this component, a court will examine whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically to cause harm. This component requires consideration of such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted.
5. Objective Component. To be deemed “excessive”, the force must be “sufficiently serious” when compared to “contemporary standards of decency.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); Estelle v. Gamble, 429 U.S. 97, 103 (1976). Not every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort “repugnant to the conscience of mankind.” See Trenn v. Harkness, 2:13-CV-407, 2014 WL 619480 (S.D. Ohio Feb. 18, 2014).
6. Because it is Prison … Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying ‘the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
E. Pretrial Detainees. What standard applies to unlawful force against individuals who had been arrested and turned over to the jail authorities for booking, but who has not yet appeared before a judge for a probable cause hearing? According to the Supreme Court, a pre-trial detainee is one who “has had only a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.’ ” Bell v. Wolfish, 441 U.S. 520, 536 (1979).
1. Fourth Amendment? Under certain facts, Courts have held that the Fourth Amendment's “objective reasonableness” standard applies to excessive force claims brought by pretrial detainees. Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010); Davis v. Pickell, 13-1426, 2014 WL 1363527 (6th Cir. Apr. 8, 2014).
2. Fourteenth Amendment? Under other facts, Court have held that the Fourteenth Amendment's Due Process Clause protects pretrial detainees from excessive force that amounts to punishment. Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir.2008),
- Shocks the Conscious. With a Fourteenth Amendment claim, courts consider whether the defendant's conduct “shocks the conscience” so as to amount to an arbitrary exercise of governmental power. This standard differs depending on the factual circumstances. Where defendants are “afforded a reasonable opportunity to deliberate ... their actions will be deemed conscience-shocking if they were taken with ‘deliberate indifference’ towards the plaintiff's federally protected rights.” If, however, the incident was a “rapidly evolving, fluid, and dangerous predicament,” the plaintiff must show that the defendant acted “‘maliciously and sadistically for the very purpose of causing harm’ rather than ‘in a good faith effort to maintain or restore discipline.’” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.2000).
3. Fourteenth Amendment vs. Fourth Amendment. A plaintiff has a substantially higher hurdle to overcome to make a showing of excessive force under the Fourteenth Amendment as opposed to under the Fourth Amendment. Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir.2001).
- Case Example. Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 137 (6th Cir. 2014). “Reed, however, had already been arrested and was in custody at the county jail. As such, Reed's claim arises under the Fourteenth Amendment, a standard that is more difficult for a plaintiff to meet. See Darrah, 255 F.3d at 306 (noting that excessive force under the Fourteenth Amendment is a “substantially higher hurdle” for the plaintiff to meet than the “objective reasonableness test of Graham, in which excessive force can be found if the officer's actions, in light of the totality of the circumstances, were not objectively reasonable”).”
- Case Example. Davis v. Pickell, 13-1426, 2014 WL 1363527 (6th Cir. Apr. 8, 2014). “[T]he Fourteenth Amendment due process standard may be more demanding than the Fourth Amendment objective reasonableness standard, [but] it does not give jail officials free rein to mete out physical punishment at will,” and “[i]t shocks the conscience to beat senseless an unresisting prisoner in order to remove his shoes and jacket.”
4. Fourteenth Amendment vs. Eighth Amendment. An excessive-force claim under the Eighth Amendment requires that the plaintiff show that force was not “applied in a good-faith effort to maintain or restore discipline,” but instead applied “maliciously and sadistically to cause harm.” But an excessive-force claim under the Fourteenth Amendment operates on a sliding scale. Generally, to constitute a Fourteenth Amendment violation, an official's conduct must “shock [ ] the conscience.” Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 133-34 (6th Cir. 2014).
III. State Law Basis for Liability
A. Assault & Battery. In Ohio, the civil claim for assault requires an intentional threat and reasonable apprehension of harmful or offensive touching and battery is an “intentional, nonconsensual touching.” Hale v. Vance, 267 F.Supp.2d 725, 736 (S.D.Ohio 2003). Law enforcement officers are privileged to commit assault and/or battery to affect an arrest unless they use excessive force. Id.
- Normally, when claims of excessive force under Section 1983 are dismissed, the Plaintiff’s assault and battery claims also will be dismissed.
B. Intentional Infliction of Emotional Distress. In Ohio, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.” Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369 (1983). The emotional distress suffered because of the “outrageous conduct” must be “severe and debilitating which occurs where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress.” Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, 765 (1983). Summary judgment is appropriate when a plaintiff presents no testimony from experts or third parties as to the emotional distress suffered and where the plaintiff does not seek medical or psychological treatment for the alleged injuries. Crable v. Nestle USA, Inc., No. 86746, 2006 WL 1555405 at 9 (Ohio Ct. App. June 8, 2006).
C. Other causes of action: While not ordinarily successful, unlawful force plaintiffs have also plead the following causes of action: Malice and Gross, Wanton, Willful, and Reckless Negligence; Loss of Consortium; Conspiracy to Falsify Reports; Spoliation of Evidence; and Civil Conspiracy.
IV. Source and Application of Immunity Defenses
A. Municipal Liability. The municipality employing the police officer will be liable if the municipality’s policy, practice, or custom caused the unlawful act. Monell v. Dep’t of Social Services, 436 U.S. 658 (1978).
1. “Official Capacity” Suits. A claim against an officer in his “official capacity” is simply another way of phrasing a claim against a governmental entity itself. Burgess v. Fischer, 766 F.Supp.2d 845, 852 (S.D.Ohio 2010).
2. Monell Analysis. The custom or policy must be the “moving force” behind the constitutional violation, so the plaintiff needs to “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Polk County v. Dodson, 454 U.S. 312, 326 (1981); Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir.1993). Municipal liability cannot rely on a respondeat superior theory. Amerson v. Waterford Twp., 13-1915, 2014 WL 1424500 (6th Cir. Apr. 15, 2014).
3. Failure to Train. The inadequacy of police training may serve as the basis for Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Proving deliberate indifference for failure to train typically requires proof that the municipality was aware of prior unconstitutional actions by its employees and failed to take corrective measures. Miller v. Calhoun Cnty., 408 F.3d 803, 815 (6th Cir.2005).
- Case Example. Amerson v. Waterford Twp., 13-1915, 2014 WL 1424500 (6th Cir. Apr. 15, 2014). “Amerson contends that Waterford Township failed to adequately train its police officers as to the proper use of force to apply during an arrest. In support of this argument, he asserts that Waterford Township's nonlethal force policy has not been renewed since completion of field training; it has not offered training on when to intervene; and excessive-force training is not part of new field training. None of these assertions proves, however, that Waterford Township was deliberately indifferent to whether its officers applied the proper amount of force in effectuating arrests. [] Waterford Township's failure to renew training on its non-lethal force policy does not suggest that it made a conscious decision to disregard known dangers. Amerson did not present any evidence of prior misconduct in the form of excessive force. He claims that Waterford Township should have known that the officers received inadequate training, because it included non-lethal force policy instruction in initial police officer training. This line of reasoning is misguided. That Waterford Township initially trained its officers in its non-lethal force policy does not show that it knew it needed to train in the same policy later, especially given the dearth of evidence illustrating that Waterford Township police officers had been charged with this type of misconduct in the past.”
4. Policymaker. An unconstitutional policy may also exist if an isolated action of a government employee is dictated by a \"final policymaker,\" or if the authorized policymaker approves a subordinate's decision and the basis for it. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)
5. Supervisory Liability. A supervisor of the offending officer can be liable in his individual capacity if he directly participates in causing the harm. However, the Sixth Circuit has held that the “failure to supervise” theory of municipal liability is a “rare one”. Similar to the failure-to-train inquiry outlined above, to sustain a failure-tosupervise claim, the plaintiff “must show that the city acted with ‘deliberate indifference’ to the risk of [the constitutional violation] and that its deliberate indifference was the ‘moving force’ behind the assault.” Amerson v. Waterford Twp., 13-1915, 2014 WL 1424500 (6th Cir. Apr. 15, 2014)
6. “Inaction” Theory. A police officer who fails to act to prevent the use of excessive force by another officer may be held liable when (1) the officer observed or had reason to know that the excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring. Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997).
- Case Example. Ontha v. Rutherford County, Tennessee, 222 F. App'x 498 (6th Cir.2007). A police officer drove a patrol car in pursuit of a wrongfully suspected criminal, while a second police officer assisted from the passenger seat. In a matter of six to seven seconds, the driving police officer made the decision to chase down the suspect, who was travelling on foot, and to strike him with his vehicle, a blow which eventually led to the suspect's death. The Court determined that in order to hold the second police officer liable, there must be a basis for concluding (i) that the second officer perceived that the primary officer had embarked on an effort to inflict force upon the suspect with the patrol car, and (ii) that he had the means and opportunity to thwart this effort. Moreover, in order to avert the harm to the suspect, the second officer would have had to both glean the nature of the primary officer's actions and decide upon and implement preventative measures within a short time span of six to seven seconds.
B. Qualified Immunity of Individual Officers. “Through the use of qualified immunity, the law shields ‘government officials performing discretionary functions ... from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Said another way, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Conversely, “if the law was clearly established, the immunity defense should fail, since a reasonably competent public official should know the law governing his conduct.” Id.
1. Affirmative Defense. Because qualified immunity is an affirmative defense, the defendant bears the burden of pleading it in the first instance. Sheets v. Mullins, 287 F.3d 581, 586 (6th Cir. 2002).
2. Burden to Overcome Immunity. Once raised, it is the plaintiff's burden to show that the defendants are not entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir.2006).
3. Interlocutory Appeal. Because the defense is a right not to stand trial for the acts, it lends itself to an immediate interlocutory appeal if denied in the summary judgment phase.
4. Q/I Analysis. Courts will generally undertake a two-step analysis of qualified immunity: (1) viewing the facts in the light most favorable to the plaintiff, determine whether the allegations give rise to a constitutional violation; and (2) assess whether the right was clearly established at the time of the incident.” Harlow v. Fitzgerald, 457 U.S. 800 (1982) Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 134 (6th Cir. 2014). These two steps may be addressed in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). If either step is not answered in the affirmative, the officer is entitled to qualified immunity.
5. The “Clearly Established” Prong. If the law at the time of the force was not clearly established, an official could not fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. The right's contours must be sufficiently clear to show that a reasonable official would understand that what he is doing violates that right. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
- Source of Law. In determining whether the plaintiff’s right was clearly established, courts within the Sixth Circuit look first to decisions of the U.S. Supreme Court, then to decisions of the Sixth Circuit and other courts within our circuit, and finally to decisions of other circuits. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.2004). ). An action's unlawfulness may be plain “from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.2004). Other sources of law, such as state regulations and communications between public agencies have also been cited to find the suspect’s right was clearly established. Hope v. Pelzer, 536 U.S. 730, 744-745 (2002) (the Court looked to state regulations and communications between public agencies as evidence that the corporal punishment at issue in the case was clearly proscribed). “[T]here need not be a case with the exact same fact pattern, or even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair warning’ that their actions were unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002)
- General Propositions of Law. The “‘general proposition’ that the Fourth Amendment prohibits police officers from using excessive force ‘is of little help in determining whether the violative nature of [a defendant's] particular conduct [was] clearly established.’” Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 509 (6th Cir. 2012).
- Example - Proper Inquiry. A proper analysis is “whether, for example, it was clearly established in May 2007 that using a taser repeatedly on a suspect actively resisting arrest and refusing to be handcuffed amounted to excessive force.’ If the answer is ‘no,’ ‘no constitutional right [was] violated ... [and] there is no necessity for further inquiries concerning qualified immunity.’” Grissom v. City of Sandusky, 3:12-CV-2504, 2014 WL 2580083 (N.D. Ohio June 9, 2014).
- Example - Right Was Clearly Established. Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir. 2013). “The prohibition against placing weight on Martin's body after he was handcuffed was clearly established in the Sixth Circuit as of August 2007. In Champion, we held that applying pressure to the back of a prone suspect who no longer resists arrest and poses no flight risk is an objectively unreasonable use of force. Zimmerman and Tieber crossed the line
Champion drew when they placed their arms on Martin's back to restrain him after he was handcuffed and prone.”
- Example - Right Was Clearly Established. Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011). “Fred's right to be free from deadly police force while complying with police commands to disarm was clearly established.”
- Example - Right Was Clearly Established. Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir.2006). “It was clearly established law in this Circuit at the time of the underlying events that individuals have a right not to be shot unless they are perceived as posing a threat to officers or others.”
- Example - Right Was Clearly Established. Davis v. Pickell, 13-1426, 2014 WL 1363527 (6th Cir. Apr. 8, 2014) “Assuming, as this court must (and as the video footage suggests), that Davis was not threatening or resisting the officers, and contrary to the deputies' assertion, it can “be said that ‘beyond debate,’ the Deputies would have been aware that the complained-of force—grabbing Davis, slamming him to the ground, kicking and punching him, and pepper-spraying him—constituted a constitutional violation under these circumstances.”
6. The Role of Training. Sixth Circuit precedent requires courts to evaluate the officers' use of certain tactics in light of testimony regarding the training that the officers received in them. Griffith v. Coburn, 473 F.3d 650, 657(6th Cir.2007). Good training can enable the officer to react properly to the threat or possible threat and respond with the appropriate tactics to address the situation, possibly including some level of force, if necessary, given the circumstances. Evidence of training can also support the defense of an excessive force claim.
- Case Example. Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 135 (6th Cir. 2014). In granting the officers qualified immunity for tasing an inmate the court noted: “Another crucial factor is the uncontradicted testimony indicating that the deputies faced an ongoing danger with Reed thrashing about on the cell floor with a loose handcuff. The deputies had been trained never to lose control of an inmate with a loose handcuff because they knew that it could be used as a weapon. Under these circumstances, even if Reed was suffering from a seizure and unable to comprehend the deputies' statements, Reed could not establish an excessive-force claim under the Fourteenth Amendment when the deputies used a Taser to subdue him and secure the handcuffs.”
- Case Example. Martin v. City of Broadview Heights, 712 F.3d 951, 960 (6th Cir. 2013). “BHPD's asphyxiation policy was implemented four years before this incident to “protect against an in-custody death and to recognize situations which would lead to positional asphyxia.” Each officer involved in the struggle reviewed the policy before August 2007. The officers' awareness of a policy that warns of the boundaries of appropriate force with respect to the danger of positional asphyxia reinforces the conclusion that their conduct was unreasonable.”
7. Use of Liability Experts. Use of force experts can be important in litigating Section 1983 claims because they speak to the “objective reasonableness” of the officer’s alleged conduct.
- Case Example. Martin v. City of Broadview Heights, 712 F.3d 951, 960 (6th Cir. 2013). In examining the second Graham factor—which focuses on the officers' conduct in light of any “immediate threat” – the Court cited the plaintiff’s liability expert: “Dr. McCauley, the estate's police-practices expert, testified that instead of taking Martin down to the pavement when he did, Tieber should have initiated ‘verbal intervention’ to calm Martin and allow time for back-up officers to arrive. Dr. McCauley concluded that a reasonable officer in this situation—faced with an unarmed and distraught individual like Martin—would try to de-escalate the situation and reduce the level of force needed to gain control. [] Instead, Tieber and his colleagues used severe force that did not match the threat Martin presented. After Tieber laid on Martin, belly to back, Semanco dropped his knee into Martin's side, fell on top of him, and delivered one or two ‘compliance body shots' to Martin's frame. Tieber then punched Martin twice in the face, and Semanco struck his face, back, and ribs at least five times. Tieber wrapped his legs around Martin's upper thighs, hips, and pelvis, and gripped Martin's chin or neck with his right arm. Zimmerman kneeled on Martin's calves, helped cuff him, and used force to keep him down. Even after Martin was handcuffed and subdued, Zimmerman and Tieber used their arms to keep Martin in a face-down position, and did not roll Martin onto his side until he made a ‘gurgling’ noise. In sum, the officers' response to the threat Martin posed to them or others was unreasonable.”
C. PLRA Defense. The Prison Litigation Reform Act of 1996 (PLRA) requires a prisoner to exhaust administrative remedies prior to filing an action in federal court. 42 U.S.C. § 1997e(a). To exhaust a claim, a prisoner must proceed through all steps of a prison or jail's grievance process, because an inmate cannot abandon the process before completion and claim that he has exhausted his remedies. Although exhaustion is not a jurisdictional prerequisite to the lawsuit, it is a mandatory requirement. Failure to properly exhaust bars suit in federal court.
1. Applies to Excessive Force claims. “PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
2. Affirmative Defense. Failure to exhaust administrative remedies is an affirmative defense. As a result, a PLRA defendant bears the burden of proving that a PLRA plaintiff has not exhausted his administrative remedies. Rose v. Reed, 2:12-CV-977, 2014 WL 2695505 (S.D. Ohio June 13, 2014).
D. Ohio Political Subdivision Tort Liability Act. Ohio law provides immunity from suit for employees of political subdivisions to many claims when those employees' activities are connected to governmental or proprietary functions, unless ... the employee acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. R.C. 2744.03(A)(6). Negligence and gross negligence are “insufficient to remove the cloak of immunity.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 316 (6th Cir.2005).
1. Policy. The manifest purpose of the Act is the preservation of the fiscal integrity of political subdivisions.” Estate of Graves v. Circleville, 124 Ohio St.3d 339 (2010).
2. Extension of Immunity to Individuals. Under R.C. 2744.03(A)(6), an employee of a political subdivision will be immune from liability for “injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function,” unless one of the three exceptions to that immunity applies. A governmental function includes the provision of police services. R.C. 2744.01(C)(2)(a). R.C. 2744.03(A)(6) provides the following exceptions to immunity:
(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code.
- The Ohio Supreme Court has defined these terms:
- Malicious purpose means the willful and intentional design to do injury, or the intentional or desire to harm another, usually seriously, through unlawful or unjustified’ conduct.
- Bad faith denotes a dishonest purpose, moral obliquity, conscious wrong doing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.
- Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is a great probability that harm will result.
- Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.
Anderson v. Massillon, 134 Ohio St.3d 380 (noting that “[b]y implication,” R.C. 2744.03(A)(6)(b) provides that “an employee is immune from liability for negligent acts or omissions”).
3. Limitation on Damages. The Act imposes a limitation on damages against political subdivisions. Punitive damage are not available against a political subdivision. ORC 2744.05.
V. Selected Use of Force Cases
A. Role of Video/Audio Evidence in Use of Force Cases.
1. Scott v. Harris, 550 U.S. 372 (2007). The plaintiff, Harris, claimed that the defendant police officer, Scott, used excessive force when he bumped Harris's speeding car with his police cruiser, ultimately rendering Harris a quadriplegic. Harris contended that when Scott rammed his car, Harris was in full control and that the roads ahead were clear, so that the jury could have found Scott's use of force excessive. The Supreme Court disagreed, observing that “[f]ar from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Accordingly, the Court determined that Harris's “version of events is so utterly discredited by the record that no reasonable jury could have believed him.” It thus held that the lower courts “should have viewed the facts in the light depicted by the videotape.”
2. Davis v. Pickell, 13-1426, 2014 WL 1363527 (6th Cir. Apr. 8, 2014). As the district court elaborated, “The shoe in question does appear low in the frame, moving on or very close to the floor, just before the deputies rush the cell,” but “it is not at all apparent from the video that it was thrown or kicked with any substantial force, or that it struck anything.” In addition, “the tape does not depict [Davis] with his fists clearly ‘balled up,’ and in fact it does show his right hand open and flat, as [Davis] raises it and places it on the wall next to him, apparently to balance himself while he removes his shoe.” Accordingly, “[n]othing about [Davis'] demeanor or approach to the door compels the conclusion that he was acting ‘aggressively’ in the moments before deputies rush the cell and tackle him.”
B. Use of Force Reports.
1. Yates v. City of Cleveland, 941 F.2d 444, 446 (6th Cir. 1991). “In his report on the incident, [the officer] stated that he was kicked, beaten in the face, and stomped on. At the emergency room after the shooting, however, [the officer] was only treated for superficial scrapes on his knee and ankle.
C. Use of Force While Serving Warrant.
1. Michigan v. Summers, 452 U.S. 692, 702 (1981). The Supreme Court has acknowledge that “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence,” and thus the detention of the occupants in the place to be search, through use of reasonable force, is constitutional.
2. Wells v. City of Dearborn Heights, 538 F. App'x 631, 637 (6th Cir. 2013) “In this case, Mueller was justified in attempting to detain Wells at the outset of the search, and Wells's apparent failure to drop to the ground quickly enough provided him adequate justification to knee Wells to the ground.”
3. Dunn v. Matatall, 549 F.3d 348, 354 (6th Cir.2008). When a suspect “appeared recalcitrant in complying with the Officer's commands,” the officers involved “acted reasonably in attempting to neutralize a perceived threat” by forcibly pulling him from his car and taking him to the ground.
4. Chappell v. City of Cleveland, 585 F.3d 901, 914 (6th Cir.2009). In Chappell, officers investigating an armed robbery suspected that the crime was committed by a local individual who had admitted to several similar robberies three months earlier. In the early hours of the next morning, after securing a search warrant, the officers entered the suspect's home. The house was still dark, leading the police to proceed from room to room with flashlights and with their firearms drawn. When they entered into a small bedroom, the officers spotted the suspect hiding in the closet. The officers ordered him out. After first hesitating, the suspect came out of the closet holding a knife with the blade pointed upward. The suspect ignored the officers' commands to drop the knife and instead moved quickly towards them. Both officers fired at the suspect, killing him instantly. Tthe Sixth Circuit held: “At best, plaintiff has presented grounds for speculation that defendants misread her grandson's innocent intentions when he came out of the closet and advanced toward them with knife in hand. Yet, qualified immunity protects officers from liability for mistakes of law and fact. Plaintiff has failed to adduce facts demonstrating that defendants, in potentially misinterpreting McCloud's actions, were plainly incompetent or deliberately violated his rights when they acted in self-defense. Plaintiff has thus failed to carry her burden under the first prong of the qualified immunity analysis of demonstrating that defendants violated McCloud's constitutional rights.”
- Case Refusing to Extend Chappel. Bletz v. Gribble, 641 F.3d 743, 752-53 (6th Cir. 2011). There are, however, several key differences between the facts in Chappell and the instant case. In Chappell, the officers had certain knowledge that the suspect had engaged in prior armed robberies using a knife. Here, there was no imputation of past or potential future violence on the part of Fred [the victim of the officer’s shooting]. In Chappell, the officers were in a small room with no opportunity to retreat. Here, the officers were in a breezeway, only feet away from the outside and, arguably, safety. In Chappell, the subject had advanced to within five to seven feet and was apparently lunging forward with a knife. Here, Fred was fifteen feet away and was allegedly lowering his weapon. Most importantly, in Chappell, “[n]one of [the] facts [were] refuted by physical or circumstantial evidence and none [were] disputed by contrary testimony. In fact, there [were] no other witnesses who could testify to the circumstances facing the detectives in the bedroom immediately before they fired their weapons.” In contrast, here, plaintiff's allegations rest not only on the eyewitness testimony of Zachary, but also on the differences of the testimony and actions of the two defendants. Thus, as in Yates, the district court's “ruling was driven by two obviously conflicting versions of the facts.” Given “that these two versions presented a classic factual dispute,” the district court properly “held the reasonableness of the shooting was a jury question.”
D. Use of Tasers.
1. Harris v. City of Circleville, 583 F.3d 356 (6th Cir.2009). Use of taser was excessive. In Harris, police officers had placed Harris in handcuffs with his hands behind his back. While one officer told Harris to kneel down, another held Harris's hands up, making it impossible for Harris to comply with the command to kneel. The officers then forcibly subdued Harris and deployed a Taser. Critically, the court recognized that “Harris was not doing anything to resist.”
2. Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 137 (6th Cir. 2014). Use of taser was not excessive where the deputies used the Taser only after multiple warnings and, more importantly, multiple attempts to wrestle Reed's arms behind his back. 3. Roberts v. Manigold, 240 F. Appx 675 (6th Cir. 2007). Finding excessive force when an individual was completely pinned to the ground by one officer and repeatedly tased by another.
4. Wells v. City of Dearborn Heights, 538 F. App'x 631, 638 (6th Cir. 2013). “According to Wells, Mueller tased him after he was handcuffed and lying on the ground. Wells recounts that once he was on the ground, he shouted profanities at Mueller and attempted to ‘turn[ ] my body around, all the way around[,] trying to get on my back and my butt just to see what was going on.’ Although Mueller claims that Wells also was kicking at him and trying to stand back up, Wells specifically denies kicking Mueller or attempting to regain his footing. Thus, because there is a genuine dispute of material fact concerning the circumstances surrounding Mueller's tasing of Wells, we must resolve this dispute in favor of Wells at this stage of the litigation and assume that it was only Wells' attempt to roll over, while handcuffed and still lying on the ground, that prompted Mueller to tase him. Based on this version of the facts, it was unreasonable for Mueller to tase Wells.
E. High-Speed Car Chase.
1. Scott v. Harris, 550 U.S. 372 (2007). “[R]espondent's vehicle rac[ed] down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.” In light of those facts, “we [thought] it [was] quite clear that [the police officer] did not violate the Fourth Amendment.” A “police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”
2. Plumhoff v. Rickard, 134 S. Ct. 2012, 2015-16 (2014). The chase in this case exceeded 100 miles per hour and lasted over five minutes. During that chase, Rickard passed more than two dozen other vehicles, several of which were forced to alter course. Rickard's outrageously reckless driving posed a grave public safety risk. And while it is true that Rickard's car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase. Less than three seconds later, Rickard resumed maneuvering his car. Just before the shots were fired, when the front bumper of his car was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car's wheels were spinning, and then Rickard threw the car into reverse “in an attempt to escape.” The officers acted reasonably in using deadly force. A “police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Rickard's outrageously reckless driving— which lasted more than five minutes, exceeded 100 miles per hour, and included the passing of more than two dozen other motorists—posed a grave public safety risk, and the record conclusively disproves that the chase was over when Rickard's car came to a temporary standstill and officers began shooting. Under the circumstances when the shots were fired, all that a reasonable officer could have concluded from Rickard's conduct was that he was intent on resuming his flight, which would again pose a threat to others on the road.
The officers did not fire more shots than necessary to end the public safety risk. It makes sense that, if officers are justified in firing at a suspect in order to end a severe threat to public safety, they need not stop shooting until the threat has ended. Here, during the 10–second span when all the shots were fired, Rickard never abandoned his attempt to flee and eventually managed to drive away. A passenger's presence does not bear on whether officers violated Rickard's Fourth Amendment rights, which “are personal rights [that] may not be vicariously asserted.”
F. Restraint Holds.
1. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir.2004) Creating asphyxiating conditions by applying “substantial or significant pressure” to restrain a subject who presents minimal safety risks amounts to excessive force.
2. Martin v. City of Broadview Heights, 712 F.3d 951, 961 (6th Cir. 2013). “Our precedents and BHPD's own policies clearly established in August 2007 that the force the officers used to restrain Martin was excessive. A reasonable officer should have known that subduing an unarmed, minimally dangerous, and mentally unstable individual with compressive body weight, head and body strikes, neck or chin restraints, and torso locks would violate that person's clearly established right to be free from excessive force.”
G. Handcuffs.
1. Excessive Force. Morrison v. Bd. of Trustees of Green Tp., 583 F.3d 394, 402 (6th Cir.2009) (qualified immunity denied where police officer ignored complaint that handcuffs were too tight.
2. Note Excessive Force. Use of handcuffs in an otherwise lawful arrest, without more, fails to state a claim for excessive force. Palshook v. Jarrett, 120 F.Supp.2d 641, 656 (N.D.Ohio 2000) (“[i]nsofar as [plaintiff's] claim rests entirely on the fact that he was handcuffed ... there is no cause of action for excessive force”); Kain v. Nesbitt, 156 F.3d 669, 672 (6th Cir.1998) (“[i]f ... the excessive force consisted of handcuffing [plaintiff] in connection with an arrest, the claim would fail because it would be apparent on its face that no constitutional violation had been pleaded”).
H. Detainment in Police Cruiser.
1. Excessive Force. Burchett v. Kiefer, 310 F.3d 937, 946 (6th Cir.2002) (subjecting plaintiff to excessive heat in an unventilated police car for three hours rose to the level of excessive force).
2. Not Excessive Force. Grissom v. City of Sandusky, 3:12-CV-2504, 2014 WL 2580083 (N.D. Ohio June 9, 2014). “I find Defendant Officers Dahlgren and Wilson did not violate Plaintiff's Eighth Amendment rights by using handcuffs, wearing a gun holster, and detaining Plaintiff in a police cruiser. Although I appreciate Plaintiff did not resist arrest, Defendants acted reasonably under the totality of the circumstances: there was a large group of people, some alleged Plaintiff was an assailant, and the allegedly injured victims had yet to be located.”